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Citation: 1976 Ann. Surv. S. African L. 196 1976

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LAW OF PROPERTY
(INCLUDING MORTGAGE AND PLEDGE)
C G

VAN DER MERWE*

A LEGISLATION
DEEDS REGISTRY

The most interesting legislation in the sphere of the law of

property is the Registration of Deeds in Rehoboth Act 93 of 1976,
which provides for the registration of deeds in the Rehoboth Gebiet
in the territory of South West Africa. Its provisions are substantially
the same as those of the Deeds Registries Act 47 of 1937. The
Rehoboth Act, however, represents a simplified and more systematic
exposition of the subject-matter. Compare in this regard, inter alia,
ss 7 and 13 of the Rehoboth Act with ss 22 and 23 of the Deeds
Registries Act. It is interesting to note that the Rehoboth Act
mentions neither mineral rights nor prospecting contracts (compare
s 84 of the Deeds Registries Act).
THE ENVIRONMENT

Catchment Areas
The Mountain Catchment Areas Amendment Act 41 of 1976
provides for the erection of beacons on the authority of the Minister
for the purpose of defining mountain catchment areas (s 1 inserting
s 2A in the principal Act, the Mountain Catchment Areas Act 63
of 1970). A right of entry and a right of way over land to such
beacons (subject to prior notification of the landowner in question)
in order to perform certain authorized activities (eg repairs) in
connection with the beacons are further granted (s 2, adding ss (3)
to s 11 of the principal Act). Section 5, substituting a new s 17 for
the old in the principal Act, provides that powers conferred by the
Act in connection with the above-mentioned beacons may not be
delegated by the Minister or Secretary.
Forests
The Forest Amendment Act 58 of 1976 amends the Forest Act
72 of 1968 by conferring on honorary forest officers certain powers
in respect of the national hiking way system (s 1, amending s 3 of
the principal Act). Section 2 amends s 4A of the principal Act by
giving a more detailed description of land which may not be
* BA LLB (UOFS) BA (Hons) BCL (Oxon) LLD (SA), Advocate of the
Supreme Court of South Africa, Professor of Law in the University of Stellenbosch.

LAW OF PROPERTY

197

afforested without prior written approval of the Secretary, namely

land
'(i) which has not previously been utilized for the establishment
and management of a commercial timber plantation; or
(ii) which, for a period of more than five years after the removal,
harvesting or destruction of a commercial timber crop, has been
unafforested'.
Section 6, amending s 31E of the principal Act, provides that
private owners of land on which any part of the national hiking
way system has been established shall admit, in addition to the
persons mentioned in the principal Act, 'any magistrate, justice of
the peace, forest officer, honorary forest officer or police officer in
order to enable him to exercise on that land any power vested in
him under this Act'. The remaining sections increase certain penalties and create new offences, inter alia, in regard to the dumping or
scattering of litter in or on private or State forests (s 5, amending
s 21).
National Parks
In repealing the National Parks Act 42 of 1962 and several
amending Acts and proclamations in respect of national parks, the
new National Parks Act 57 of 1976 seeks to consolidate the laws
relating to national parks. A list of existing national parks is set out
in the first schedule to the Act and provision is made by s 2 for the
establishment of new parks by proclamation of the State President.
Under the Act national parks are administered by a board of
trustees, the office, revenue and powers of which are regulated by
various sections of the Act (ss 5-18). The object of the constitution
of a park is, according to s 4, the establishment, preservation and
study of wild animal, marine and plant life and other objects in
such a way that the park in its natural state is retained for the
benefit and enjoyment of visitors. In accordance with this object
certain restrictions are imposed on entry into, or residence in, a
park, and certain acts injurious to the preservation of the natural
state of the park are subjected to penalties (ss 21, 24).
For a property lawyer the following aspects of the Act are of
interest: Section 3 provides that the Minister of Agriculture may by
purchase or exchange, or, failing agreement with the owner, by
expropriation, acquire any land included in a park or any mineral
right in such land for the purposes of that park. In the case of
expropriation the provisions of the Expropriation Act 55 of 1965 are
made applicable mutatis mutandis. By s 20 prospecting and mining
in a park are prohibited. Section 21 places certain restrictions on

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ANNUAL SURVEY OF SA LAW

entry into and residence in a park, while s 23 states the purpose for
which permission to enter or reside in a park may be granted. By
s 22 the rights of certain owners and occupiers of land riparian to
public streams included in a park are regulated. Section 30 provides that the Sea-shore Act 21 of 1935 shall not apply in or in
respect of any area which forms part of a park.
National parks can, it is submitted, be classified as res publicae,
namely things belonging to the State, while the use and enjoyment
thereof is open to the general public. National parks thus fall into
the same category as public streams, public roads and harbours.
It is further submitted that, although the Act prohibits the hunting
(s 21(1)(c)) and removal (s 21(l)(h)) of any wild animal from the
park under penalty of a fine or imprisonment, this will not deprive
the hunter of ownership of the res nullius he has taken into possession.
Ribbon Development
Section 2 of the Advertising on Roads and Ribbon Development
Amendment Act 6 of 1976 amends the Advertising on Roads and
Ribbon Development Act 21 of 1940 by the insertion of s 9A. This
section prohibits (subject to certain exceptions) the erection of any
new structures on or underneath the surface, or any alteration or
addition to any existing structure within 500 metres from an
intersection of two building restriction roads. The principal Act
does not deal with intersections but merely prohibits the abovementioned operations within 95 metres from a building restriction
road.
EXPROPRIATION

By Proc 273 GG 5363 of 24 December 1976 the Expropriation

Act 63 of 1975 was declared to come into operation on 1 January
1977.
ILLEGAL

SQUATTING

In terms of the Prevention of Illegal Squatting Amendment Act 92

of 1976 new provisions are inserted in the Prevention of Illegal
Squatting Act 52 of 1951 prohibiting the owners or lessees of land
from erecting or permitting the erection of buildings or structures
not approved by a local authority. A person erecting or permitting
the erection of such buildings or structures is made guilty of an
offence, and in order to avoid a further conviction he must remove
the building or structure at his own expense. If he fails to remove
the structure the local authority is empowered to demolish and
remove the material and to recover the cost (s 3A, inserted by s 2).
The owner of the land without whose consent such buildings have
been erected, an officer of a local authority in the area or an officer

LAW OF PROPERTY

1VV

of the Department of Community Development (or Bantu affairs

administration board) are further empowered to demolish an
unauthorized structure without any order of court after at least
seven days' written notice has been given to the person who erected
the structure. An owner on whose land an unauthorized structure
has been erected is made guilty of an offence if he fails to notify
the local authority or the Department of Community Development
thereof in writing after the matter has been brought to his notice
(s 3B). The Act further regulates the entry of persons belonging to
certain population groups seeking employment in an area, in that
permission to enter is granted by the Minister of Community
Development only after a certificate has been obtained from the
local authority for that area certifying that proper housing is
available or will be provided by the prospective employer (s 3C).
The remaining provisions of the Act relating, inter alia, to the
erection of emergency camps for homeless people, the increase of
penalties and the creation of new offences do not fall within the
sphere of the law of property.
PARTICIPATION BONDS

The Financial Institutions Amendment Act 101 of 1976 amends

the Participation Bonds Act 48 of 1964 in several respects. Section
3(1) of the principal Act is extended by s 33 of the amending Act
in that money need not be refunded within 60 days as from the
date of acceptance of the money if the Registrar allows an extended
period in a particular case. Section 34(a), substituting a new
s 6(2)(b) for the old in the principal Act, creates an additional
instance in which a holder of a participation bond is entitled to
enforce his right of repayment of the principal debt secured by the
bond, namely, when
'(ii) subject to the terms and conditions of the bond, he, together
with any other such holders who, together with him, hold a
majority in value of the participations in the bond, instructs the
manager in writing to recover from the mortgagor such portion
of the principal debt as is necessary to repay in full his participation and the participations of such other holders or, such an
instruction having been given, the manager fails to comply
therewith within six months of the date of receipt thereof'.
Section 34(b), substituting a new s 6(6) for the old subsection,
creates a further instance in which a participant can transfer or
cede his right without the consent of the mortgagor, namely, if
'the amount of money which is due to him in terms of the participation by which the said rights are conferred, had been invested

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ANNUAL SURVEY OF SA LAW

in his name in the scheme up to the date of transfer or cession

and for a continuous period of not less than five years'.
Section 35, inserting s 8A in the principal Act, provides that two
or more companies may not amalgamate, nor may any rights under
any participation bond be ceded or transferred to any other
nominee company, except with the prior written consent of and
on the conditions prescribed by the Registrar after he has satisfied
himself that the transaction in question will not be detrimental to
the participants in the bond in question. The section further regulates
the position in cases where such consent is in fact obtained from
the Registrar. Section 36 (amending s 9 by substituting a new
ss (5)) extends the conditions on which the rules of a participation
bond scheme may be amended.
WATER

Water Act 54 of 1956

Several minor amendments are made to the Water Act 54 of

1956 by the Water Amendment Act 27 of 1976. By s 1 of the
amending Act s 62 of the principal Act is extended to enable the
Minister to make adjustments and repairs to certain privately
owned water works situated not only within a Government water
control area as provided by the principal Act but also to those
situated within the 'limits of the works' as defined in the Vaal
River Development Scheme Act 38 of 1934. Section 2 of the amending Act amends s 6(2) of the principal Act in that the interest rate
in respect of arrear rates or charges on water supplied from a
Government water work is equated with the interest rate applicable
to loans under s 26 of the Exchequer and Audit Act 66 of 1975.
Further amendments relate to the terms of office of the members
of water boards (s 3, amending s 109 of the principal Act); loans
and further loans procured by boards (ss 4 and 5, amending ss 121
and 157 of the principal Act); and subsidies (s 6, amending s 162
of the principal Act). In s 7, amending s 169A of the principal Act
(which relates to the establishment and extension of a township
beyond certain lines) reference is made to 'a line indicating the
maximum level likely to be reached on an average every fifty years
by flood-waters in any public stream ...inserted on the relevant
layout plan'. The principal Act referred to a line inserted on the
relevant general plan.
Water Pollution

By GN R287 GG 4989 of 20 February 1976 (Reg Gaz 2279) the

Minister of Water Affairs, by virtue of the powers vested in him by

LAW OF PROPERTY

201

s 26 of the Water Act 54 of 1956, approved various regulations

pertaining to measures aimed at the prevention of water pollution
resulting from the operations of mines and works. Examples of such
regulations are the following:
'6.1 The manager of a mine or works shall, unless otherwise
authorized in writing by the Secretary, on the conditions the
Secretary considers necessary to prevent the pollution of any
water, cause effective measures to be taken to prevent effluent,
including water pumped from underground or which flows
naturally from a mine or works, to flow or seep beyond the
boundaries of the property on which the mine or works is situated.'
'7. The manager of a mine or works shall make adequate provision to the satisfaction of the Secretary to prevent as far as is
reasonably practicable, run-off from eroding slimes dams and
minerals, tailings and waste-rock dumps due to rain.'
'11.3 French drains and ditches to catch seepage water and
carry it to evaporation dams or to sumps for recycling, shall be
constructed at all tailings dumps wherever seepage occurs.'
Non-compliance with the regulations renders the owner and/or the
manager and/or an employee liable to penalties under s 170(3) of
the Water Act. The manager of a mine or works is also compelled
by regulations to cause a plan containing certain prescribed details
and depicting all works constructed for the control of water on the
surface of a mine or works to be drawn up. A copy of the plan,
brought up to date from time to time, must be submitted on request
to the Secretary of Water Affairs (reg 5).
MISCELLANEOUS

The State Land Disposal Amendment Act 26 of 1976 adds (by

s 1) a proviso to s 2(2) of the State Land Disposal Act 48 of 1961.
Section 2(2) provides that the State President shall not dispose of
any particular State land in terms of ss (1) if the disposal thereof is
governed by a provincial ordinance. By the amended proviso the
leasing of the whole or any portion of certain land contemplated in
item 5 and item 24 of the second schedule to the Financial Relations Consolidation and Amendment Act 38 of 1945 is excluded
from the subsection. Under s 3 (amending s 7 of the principal Act)
a Minister may either generally or in regard to specified State land
or in a specified case assign (to certain councils and bodies) any
power conferred upon him in terms of the Act to lease State land
with the approval by resolution of Parliament.

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B CASE LAW
ACCESSORY

In a case on income tax deductions, SIR v Charkay Properties (Pry)

Ltd 1976 (4) SA 872 (AD), interesting remarks were made on the
circumstances in which an article attached to a building can be
said to form part of the building for the purposes of the second
proviso to s 11 (c) of the Income Tax Act 58 of 1962. The case dealt
with detachable partitions in a fourteen-floor building that had no
permanent inner walls. It was pointed out that the demountable
partitions could become a permanent part of the building only after
they had been structurally integrated or otherwise physically
incorporated into the building in such a way that they lost their
separate identity and character. This factual question would
normally be determined objectively, but in cases of uncertainty the
subjective intention of the owner in attaching the article to the
building would also be taken into account. In this case the demountable partitions were not easily removable, but, according to their
normal use, were meant to be and were in fact moved about or
removed from time to time. This decision, together with Pettersen v
Sorvaag 1955 (3) SA 624 (AD) and CIR v Le Sueur 1960 (2) SA 708
(AD), thus affords an interesting illustration of how a building or
ostensible part thereof can sometimes be considered a movable or
temporary structure.
OWNERSHIP

Limitations on Ownership
Two recent decisions deal with limitations on ownership. The
first deals with a limitation under the rules of private law relating
to the natural flow of water, while the second concerns a limitation
imposed by public law.
In Redelinghuis v Bazzoni 1976 (1) SA 110 (T) the rights and
obligations of owners of neighbouring land with regard to the
natural flow of water received special attention. The plaintiff
averred that by building walls on two boundaries of his property
the defendant had increased the flow of percolating water to his
property. The plaintiff therefore asked the court to order the defendant to halt this flow and to pay compensation for damage caused.
A plea for absolution from the instance was filed on behalf of the
defendant. F S Steyn J analysed the pleadings and found that the
plaintiff's primary claim was based on the actio aquae pluviae arcendae,
while an alternative claim for damages would be either delictual in
nature or based on the interdictum quod vi aut clam.
The general principle underlying the actio aquae pluviae arcendae

LAW OF PROPERTY

03

as stated in New Heriot Gold Mining Co Ltd v Union Government 1916

AD 415 at 421 was quoted by the learned judge:
'Apart from servitude no one is entitled by means of artificial
works to discharge upon his neighbour's land water which would
not naturally flow there, or similarly to concentrate and increase
the natural flow to the detriment of his neighbour.'
Steyn J had to decide, first, whether this action applied to rural
as well as to urban tenements. He quoted Voet 39.3.4 in support
of the contention that the actio aquae pluviae arcendae is applicable
only to rural tenements, whereas the actio negatoria de stillicidio vel
flumine (the action denying liability to receive drippings or a stream)
applied to urban tenements. Voet's point of view had been supported
in Bishop v Humphries 1919 WLD 13 at 17:
'The fact is that when land is sold in small building plots, a state
of things is created and contemplated which puts an end to a
large extent to the natural servitude which previously existed as
regards the water which falls on the plots. Each owner puts up a
building which covers a substantial part of the plot. He places an
impervious surface over the naturally porous surface of the soil.
He accumulates the water thereon. He alters the natural surface
of the rest of the area of his plot by paving it or by locating
temporary structures thereon or digging it up, and thereby
annihilates the natural arrangement of the soil. The rainwater
can no longer flow as it used to flow.'
The learned judge dismissed a dictum by Kuper J in Benoni
Town Council v Meyer 1959 (3) SA 97 (W) to the effect that, since
neither the actio aquae pluviae arcendae nor the actio negatoria de
stillicidio vel flumine had been accepted as such in modern South
African law, the legal position with regard to rural and urban
tenements should be the same. He indicated, it is submitted correctly,
that the principles underlying the actio aquae pluviae arcendae differ
considerably from the principles which form the basis of a servitudal
right. For this proposition he relied on Grotius 2.34.14 and 2.34.16,
and Voet 8.2.13. Relying, inter alia, on the decision of Jansen J (as
he then was) in Benoni Town Council v Meyer 1961 (3) SA 316 (W)
and Bishop v Humphries (supra) he held that Voet was correct in
stating that the actio aquae pluviae arcendae applies only to rural tenements and not to urban tenements.
The court had also to decide what constituted an urban tenement
and whether the tenements in question were rural or urban. In
accordance with the cases mentioned above, the learned judge
stated that the situation of a property in a municipal area does not
in itself furnish the answer to this question. In his view, factors such

ANNUAL SURVEY OF SA LAW

as the extent of the property, the extent of the building development

in the catchment and drainage area as well as the identifiability of
the original topographical qualities of the property concerned should
be taken into account in determining whether a particular piece of
land is urban or rural. He pointed out that two of these factors,
namely, the ease with which the original topographical features
could be determined and the relatively large size of the tenements,
had not been properly taken into account in the decision of Barklie
v Bridle 1956 (2) SA 103 (SR), where it was found that the relevant
tenements were urban. Considering the low percentage of built-up
land (25 to 30 per cent), the relatively small size of the tenements
and the fact that the original contours were still visible, Steyn J
reached the conclusion that the tenements in question were not
urban but rural. As the tenement was a rural one, it was held that
the plaintiff's averment was sufficient to entitle him to the actio
aquae pluviae arcendae. The plea of absolution on behalf of the
defendant was therefore dismissed.
It was further held that the interdictum quod vi aut clam was not
applicable since it had been not the defendant himself but one of
his predecessors in title who had built the walls and thus caused the
harm. With regard to Aquilian liability, the learned judge pointed
out that the defendant's conduct in storing the water would be
unlawful only if the natural flow of the water was diverted. This in
itself would entitle the plaintiff to an interdict prohibiting his
unlawful conduct (semble under the actio aquae pluviae arcendae?) If
fault could further be proved on the part of the plaintiff, damages
could also be claimed. Because of insufficient evidence as to the
quantum of damages this claim was not pursued.
This decision deals with two of the various Roman law remedies
which form the basis of South African 'neighbour law'. South
African legal rules pertaining to owners of neighbouring properties
have unfortunately not been fully worked out. They consist of a
few casuistic remedies drawn mostly from classical Roman law and
the English law of nuisance. A complete set of neighbour law rules
based on a general principle (which could be extracted from the
various antiquated remedies, and which might very well be the
vague but respected maxim sic utere tuo ut alienum non laedas) should,
it is submitted, be found. Moreover, neighbour law should straddle
both the law of property and the law of delict. It should draw its
remedies both from the law of property restraining infringement of
ownership and the law of delict compensating the victim for damage
caused. It is still disputed whether delictual liability under neighbour
law should be based on fault. A remark by Steyn J in the case under
discussion could support strict liability:

LAW OF PROPERTY

205

'Hierdie onnatuurlike konsentrasie van water op die suid-westelike

hoek van verweerder se erf skep 'n klaarblyklike risiko en waarskynlikheid dat die konsentrasie 'n vermeerderde uitloop van
syferwater in sy omgewing sal veroorsaak' (at 120A).
With regard to terminology, it is submitted that it is unsound to
refer to the obligation imposed on the owner of a lower-lying
tenement to receive the natural flow of water as a 'natural servitude'.
A clear distinction, as indicated by SteynJ, should be drawn between
servitudes on the one hand and rules of neighbour law on the other.
A servitude is an external limitation imposed by agreement between
the parties, prescription or statute, whereas obligations under
neighbour law are inherent in the ownership of land.
This decision has clearly differentiated between the obligations of
owners of rural tenements with regard to rainwater and those of
owners of urban tenements. Lower-lying rural tenements are
obliged to receive water that flows thereon, whereas higher-lying
tenements will be exposed to the actio aquae pluviae arcendae if a
diversion of the natural flow is detrimental to another tenement.
There is, on the contrary, a strict obligation on the owner of an
urban tenement to prevent rainwater falling on his land from
reaching the land of his neighbour. If such water does reach the
neighbour's land, he can be compelled by the actio negatoria de
stillicidio vel flumine to stop the water from reaching the land.
Inasmuch as this is a strict obligation, it makes no difference if no
reasonable precautions could have been taken by the owner to
prevent the water from reaching his neighbour's tenement. (Cf
Barklie v Bridle (supra) as discussed in 1956 Annual Survey 134.) In
the case of rural tenements the owner is allowed to direct the
natural flow in order to exploit the agricultural potential of his
tenement. It is interesting to note that no similar exception is
recognized in the case of urban tenements which are fully exploited
(ie if buildings have been erected on the property).
An interesting illustration of how ownership can be limited by
public health regulations is the recent case of Cape Town Municipality
v Abdulla 1976 (2) SA 370 (C). Under a regulation enacted in terms
of powers conferred by the Municipal Ordinance 19 of 1951 (C),
the municipality had ordered Abdulla to demolish an enclosure on
the verandah of his shop. It was held that since no considerations of
resulting injustice or harshness came into play the municipality did
not have to pay compensation in this case. It was further held that
the decision of the municipality was valid since the municipality
had, in exercising its function to safeguard the health of the public,
come to a proper and legal decision that certain action was necessary

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to further such function. Van Winsen AJP remarked that the court
should not promote the perpetuation of outdated standards. He
was not surprised that health requirements had become more
exacting over the last 33 years. This is only one of the many recent
decisions which sound a warning to owners of municipal plots that
it is a myth that their ownership includes a so-called ius abutendi.
Proof of Ownership
In S v Sikwane 1976 (2) SA 896 (T), an appeal from a conviction
of illegal squatting, it was contended, inter alia, that the State had
failed to prove that the Bantu affairs administration board was the
owner of the land on which the accused had squatted. The State
had produced neither the title deed nor an extract from the register
certified by the Registrar of Deeds as permitted by s 261 of the
Criminal Procedure Act 56 of 1955 as evidence of its ownership. It
appeared, however, that the assets and liabilities of the municipalities in question had by virtue of the Bantu Affairs Administration
Act 45 of 1971 and GN 1947 of 1973 become vested in the board.
Since these enactments were not challenged, the board was recognized as owner of the land. This case illustrates what is meant by a
negative system of registration. The board had become owner of the
land by statute although the land may still have been registered in
the name of someone else. See also S v Peter 1976 (2) SA 513 (C), in
which case remarks were made on the circumstances in which the
Bantu affairs administration board could be considered owner or
lawful occupier of land on which a shanty stood (at 516-17).
Meaning of 'Owner'
Two recent decisions deal with the effect of being registered
owner of a vehicle in terms of the Road Traffic Ordinances. In
S v Levitt 1976 (3) SA 476 (AD) the accused purchased a motor car
under a hire-purchase agreement on the condition that ownership
remained with the seller until the full purchase price had been
paid. The vehicle was thereupon registered in the name of the
purchaser's wife. The accused was convicted under the Insolvency
Act 24 of 1936 in that, being insolvent, he had removed or made a
disposition of an asset to the prejudice of his creditors. On appeal
it was, however, held that registration in the name of the wife had
conferred neither ownership of the car nor contingent rights in
terms of the hire-purchase agreement. Ownership had remained
with the seller at all material times. Since the appellant had not
been owner of the car except for purposes of registration, he had
not been in a position to make any disposition in the sense of transferring ownership from himself to his wife.

LAW OF PROPERTY

207

Nkosana v Rondalia Assurance Corporation of SA Ltd & others 1976

(4) SA 67 (T) deals with the meaning of 'owner' and 'ownership'
under the Compulsory Motor Vehicle Insurance Act 56 of 1972.
In this case the second and third defendants excepted to an action
for damages as a result of a collision on the ground that they were
not the owner of the vehicle because they were not registered
owners in terms of the Road Traffic Ordinance 21 of 1966 (T).
The exception was dismissed. The court found that there was no
basis for the argument that the word 'owner' or the word 'ownership' in the Compulsory Motor Vehicle Insurance Act (except in
special sets of circumstances mentioned by the Act) bore any
meaning other than the meaning ordinarily ascribed to these words
in accordance with the common law. There was therefore no justification to relate these words to the registration of ownership in
terms of the Road Traffic Ordinance 21 of 1966 (T), or for giving
the word 'owner' the meaning of 'owner' as defined in the previous
Motor Vehicle Insurance Act 29 of 1942.
See also Akojee v Sibanyoni 1976 (3) SA 440 (W), discussed under
'Rei Vindicatio' below 209.
Delivery: Passing of Ownership
In Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola
1976 (4) SA 464 (AD), an important case on attachment ad
fundandam jurisdictionem, interesting remarks were made on the
passing of ownership in the case of movables in general and the
passing of ownership by means of the delivery of a bill of lading in
particular. The case dealt with the passing of ownership of a
quantity of maize sold in terms of an fob contract to a purchaser in
Venezuela. The cardinal question was whether the maize could be
attached ad fundandam jurisdictionem while the ship which was to
carry the maize to Venezuela was still in the harbour. This could
only be done if the purchaser had become owner of the maize at
the time of attachment. It was held that, since ownership in the
maize was at that time still vested in the seller, the maize was not
an asset of the purchaser's which could be attached.
Having set out the general requirements for delivery of a movable
(at 489-90), and having stated that the delivery of a bill of lading
had been accepted in London and South African Bank v Donald Currie
& Co (1875) 5 Buch 29 as a form of 'symbolic' delivery, Corbett JA
summed up the legal position with regard to bills of lading (at 492) :
'The most significant of the shipping documents is the bill of
lading. This constitutes an acknowledgment by the master of
the ship, on behalf of the shipowner, that goods have been

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ANNUAL SURVEY OF SA LAW

delivered on board and evidences an undertaking to carry the

goods to the stated place of destination. The person in whose
name or to whose order the bill of lading is made out may by
endorsement and delivery transfer his rights under the bill to
another. The holder of the bill, ie, the person in whose favour
it was originally made out or the endorsee thereof, is entitled, to
the exclusion of all others, to receive the goods from the ship at
the place of destination. He is thus in the same commercial
position as if he were in physical possession of the goods. The
bill of lading is, accordingly, recognised as a symbol of the goods
and the transfer of the bill is regarded as a form of symbolic
delivery. It is usual under a cif contract for the seller to take the
bill of lading in his own name, or to his order, and for the bill,
duly endorsed, to be tendered, together with the other shipping
documents, against payment of the invoice price, either in cash
or by the acceptance of a draft. Ownership in the goods normally
passes to the purchaser upon transfer of the bill of lading and
concurrent payment.'
According to a clause in the contract of sale, the sale was interpreted in such a way that delivery of the maize was held not to
have taken place until the bill of lading was handed over and duly
endorsed in blank by the seller to the purchaser's bank. In the
case of the maize being loaded into the ship's hold, the seller could
be said to surrender custody thereof to the master of the ship. This
would, however, have been on the understanding that the master
would issue a proper bill of lading within a reasonable time. At that
stage the seller could not be said to have surrendered either his
corpus or his animus possidendi with regard to the maize. Until the
bill of lading had been handed over to the buyer's bank, the seller
as holder of the bill would have retained control of the maize.
Eventual transfer of the bill of lading would, according to the
learned judge, symbolically have represented delivery of possession
of the maize to the buyer. Simultaneously the seller would have
divested himself of control and relinquished his animus possidendi.
Since delivery of possession was a minimum requirement for the
passing of ownership, ownership could only be transferred by
delivery of possession of the maize. It was further held that a letter
of credit which had been irrevocably confirmed merely provided the
seller with the assurance that the buyer would be able and willing
to implement his obligations when they became due. Such a letter
could not convert a sale expressly for cash into a credit transaction
in which ownership could have been intended to pass before the
purchase price was paid.

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As far as terminology is concerned, it is submitted that delivery

by means of a key or a bill of lading should be referred to as an
instance of constructive delivery (as opposed to physical delivery
de manu in manum) rather than as symbolic delivery. Neither the key
nor the bill of lading is merely a symbol: each is an effective,
exclusive means by which possession of the goods in the warehouse
or the ship's hold can be obtained. It is not a symbol in the sense
of a clod from a piece of land symbolizing control of the whole
land or a stone from a heap symbolizing control of the whole heap.
The key or bill of lading is the direct method by which control
over the goods is gained and retained.
Rei Vindicatio
In Minister van Verdediging v Van Wyk 1976 (1) SA 397 (T) it was
stated that an owner of stolen property has alternative remedies for
recovery of his property: either a rei vindicatio or a condictio furtiva.
Once he has exercised his choice he has no further redress. The
condictio furtiva, an action in delict and not an action arising from
enrichment, is instituted par excellence in cases where the stolen
property has been destroyed or consumed. As the remedies are in
the alternative a condictio furtiva cannot be instituted if, when a
rei vindicatio has already been instituted, it is discovered that the
property was destroyed while in the possession of the thief. In this
particular case a motor vehicle belonging to the plaintiff had been
wrongfully removed and had subsequently burnt out. The judge
found that the condictio furtiva could not be instituted against an
accomplice who had removed the car. The reasons for his decision
were that, first, there exists ample authority that the condictiofurtiva
cannot be instituted against an accomplice, and secondly, since the
plaintiff had sold the wreckage prior to taking suit he had no longer
been owner at the time when the action had been instituted.
Ownership is an essential requirement for the institution of the
condictio furtiva.
The next case on vindication, Akojee v Sibanyoni 1976 (3) SA
440 (W), affords a good illustration of the circumstances in which
an owner of a movable can be estopped from vindicating his property.
The applicant had delivered his motor vehicle to a motor dealer for
the purpose of selling it. He retained possession of the annual licence
and registration papers in respect of the vehicle. He instructed the
motor dealer not to deliver the vehicle to the purchaser until the
full purchase price had been paid. In the event of payment the
applicant intended to sign and deliver the necessary licence and
registration certificate to the purchaser in order to effect registration of the new ownership. The motor dealer sold the vehicle to a

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third party who paid R2 000 in cash to him, the balance to be paid
in instalments under a hire-purchase agreement. A cheque drawn
by the motor dealer for the full purchase price was given to the
applicant but dishonoured on presentation. An application for an
order authorizing the deputy sheriff to remove the vehicle frcm
the possession of the third party was refused on the ground that the
applicant was estopped from vindicating the vehicle from a bona
fide purchaser. By giving up the vehicle to the motor dealer for the
purpose of selling it, the applicant must have contemplated that
the vehicle would be exhibited for sale at the business premises with
the other stock-in-trade. Thereby he had represented that the
dominium and power of disposal was vested in the motor dealer. He
could not now rely on his private instructions to the motor dealer,
namely, not to deliver the vehicle until the full purchase price had
been paid.
With regard to the registration certificate and the effect of delivery
thereof Nicholas J said (at 442):
'The belief of the applicant that he was protecting himself by
retaining the possession of the registration certificate and annual
licence issued under the Road Traffic Ordinance 21 of 1966 (T)
was illusory. Such documents do not constitute documents of
title to the motor vehicle. Delivery of them to another does not
constitute an implied representation of a power to dispose of the
vehicle: it takes the matter no further than the delivery of the
vehicle itself. . . . And, conversely, the fact that a person disposing
of a motor vehicle is not in possession of these documents is not
inconsistent with his power to dispose. Compliance with the provisions of s 42(3) (a) of the ordinance, in terms of which a transferor of a motor vehicle is required to deliver to the new owner a
notice of transfer of ownership, together with a registration
certificate and a licence, is not a prerequisite to the passing of the
ownership in the vehicle, which is governed by the common law.'
On circumstances in which a plea of estoppel can be raised
against the owner of a movable see also Oakland Nominees (PtY) Ltd v
Gelria Mining & Investment Co (Ply) Ltd 1976 (1) SA 441 (AD). This
case deals with the ownership of shares, and is discussed in the
section on Company Law below.
POSSESSION

Criminal Law Possession

In 1976 three decisions dealt with the requirement of possession
for certain statutory offences. As the meaning of possession in

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criminal law coincides to a great extent with its meaning in the law
of property, those decisions are also of interest to the property
lawyer.
On a charge of being in unlawful possession of dagga it was held
in S v Williams 1976 (1) PH H101 (C) that, since the definition of
possession under the Abuse of Dependence-producing Substances
and Rehabilitation Centres Act 41 of 1971 includes 'keeping, storing
or having in custody or under control or supervision', the accused
could not effectively plead that he had not been in physical (personal)
possession of the dagga. As far as the animus was concerned it was
held that once possession was established it made no difference
whether the appellant ultimately intended to return the dagga to its
true owner, use it for his own purposes, or even get rid of it.
On a similar charge in S v Job 1976 (1) SA 207 (NC) it was clear
that the accused had had physical control (detentio) over the receptacle in which the dagga had been found. It was, however, argued
that she had had no animus with regard to the dagga because she
had only known of food kept in the receptacle; it had been found
that the dagga had been deposited in the receptacle without her
knowledge. In these circumstances it was held that the State had
failed to prove animus with regard to the dagga. Jacobs AJP was
careful to point out that the circumstances of the present case
differed from those in S v Smith 1965 (4) SA 166 (C) and S v
Mofokeng 1973 (2) SA 89 (0). In support of his decision he quoted
the following passage from the judgment of Corbett J in Smith's
case (at 173):
'It might have been different had he [the accused], for example,
thought the bag was empty because a person can hardly be
regarded as having an animus of this nature towards an article of
whose presence he is totally unaware.'
The strong reliance placed on subjective animus in the form of
definite knowledge of the dagga may be explained by the close link
which exists between the animus in possession and the mens rea that
has to be proved on the part of the accused. However, such a strong
subjective proof of animus is not always required in the sphere of the
law of property. A person is taken to be possessor of a letter which
is dropped into his post-box or the wild animal caught in his trap
even though he has no knowledge of it at the relevant time (see
D 41.1.55, Voet 41.1.4). This animus is sometimes explained as being
a so-called projected animus, ie the person putting up a post-box
or setting a trap already has the intention at that stage of becoming
possessor of everything or certain specified things which happen to
find themselves in his post-box or trap.

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Another relevant case is S v Cronje 1976 (2) SA 62 (C). The police

had found 3,5 kilograms of dagga above the ceiling in the house of
the appellant and her husband. While climbing into the ceiling,
the police sergeant had been prevented from doing so by the appellant. The court found that the appellant's knowledge of dagga was
not the only reasonable inference to be drawn from such conduct.
Another reasonable inference could also be drawn from her conduct,
namely that she had wanted to protect her husband. It was therefore held that the State had not proved the necessary animus on the
part of the appellant to possess the dagga. The following dictum is
illuminating:
'Haar gemoedstoestand is geensins in hierdie omstandighede di6
van 'n besitter nie. Dit kan nie gesei word dat sy 6f namens haar
man, 6f namens haarself, die dagga gehou het, opgeberg het, in
bewaring of onder beheer of toesig gehad het nie. Dit sou, in die
veronderstelde omstandighede so pas uiteengesit, dalk die laaste
ding gewees het wat sy sou wou doen om 'n besitsdaad ten
opsigte van die dagga te pleeg' (at 68).
In S v Claassens, S v Phillander 1976 (3) SA 304 (SWA) the following definition of possession by Jansen JA in S v Brick 1973 (2) SA
571 (AD) at 582H was accepted:
'In our law "possession" ordinarily connotes intentional physical
control with, at least, the qualification that it is effected for one's
own purpose or benefit (animo sibi habendi), as stated eg by Voet
41.2.1, over 200 years ago.'
The court added (at 306B):
'This meaning is retained in s 2(b) [of Act 41 of 1971] but
extended by s I to include keeping, storing or having in custody
or under control or supervision.'
Spoliation
In Oglodzinski v Oglodzinski 1976 (4) SA 273 (D) it was held that
a mandament van spolie can be brought by one spouse against the
other. While the applicant was away, the respondent, to whom the
applicant was married, had the locks of the flat which they occupied
together changed. She thereby prevented the applicant from
obtaining access to the flat. In an application for a spoliation order
the court found that the applicant had been in peaceful and undisturbed possession of the property and that he had been unlawfully
deprived thereof. The respondent raised two defences. Her first
defence, viz that she had been entitled to sole occupation by virtue
of a certain lease agreement, was dismissed since it was a defence

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on the merits of the case. Her second contention was that the
mandament van spolie had no application where husband and wife
were concerned. Relying on Hamman v Hamman 1949 (1) SA 1191
(W) at 1194, where it was held that since a wife had a right to
possession of her property she was entitled to eject her husband, it
was argued that a wife's right of possession should also be a valid
defence to a spoliation order. LeonJ pointed out that ejectment cases
differ from spoliation proceedings inasmuch as the former rest upon
a right of possession (a ius possidendi) whereas the latter are solely
linked to the actual enjoyment of possession (possessio). He also
pointed out that in the light of Badenhorst v Badenhorst 1964 (2) SA
676 (T) at 679, the ratio in Hamman's case was perhaps too widely
stated. According to Leon J there was in any event no conceptual
or logical reason why the courts should exclude cases between
husband and wife from the general rule. He also referred to
Rosenbuch v Rosenbuch 1975 (1) SA 181 (W), in which a husband
married out community of property applied for a spoliation order
against his wife, who had left the joint household taking with her
certain furniture. The court held that a joint possessor should be
entitled to a mandament van spolie where one of the two joint
possessors unlawfully takes exclusive possession of something held in
joint possession against the will of his co-possessor.
Since the ratio underlying a spoliation order is to prevent people
from taking the law into their own hands and to restore possession
ante omnia before considering the merits of the case, it is submitted
that there is no reason why a close relationship between the parties
in spoliation proceedings should render the remedy inapplicable.
EXPROPRIATION

In an action for compensation in respect of land expropriated for

use as an international airport, the applicant in Minister of Agriculture v Tongaat Group Ltd 1976 (2) SA 357 (D) applied under Rule of
Court 33(4) for the stay of proceedings so that certain issues could
be determined beforehand. Miller J found that only one of the
issues merited such special treatment. This was whether the loss in
the form of the diminished value of adjoining properties caused, not
by the expropriation of the land itself, but by the use to which the
land had been put, was compensable. Since this issue appeared
reasonably crisp and at least arguable, the learned judge was of the
opinion that it would be to the advantage of all concerned if it
could be determined before the trial was heard. He pointed out
that evidence which would probably be led to establish the quantum
of loss under this head could assume enormous proportions.
Valuators on both sides could be called upon to testify as to the

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value and probable diminution in value of each of more than 100

peripheral premises which could be affected by the establishment
of an international airport.
This case had a sequel in Tongaat Group Ltd v Minister ofAgriculture
1976 (3) SA 251 (D) (digest of cases on appeal). It was held that
there is no justification for extending the ordinary meaning of
expropriation so as to include the purpose of the expropriation and
the use of the land for such purpose when the amount of 'any actual
financial loss . . . caused by the expropriation' under s 8(1)(a)(ii)
of the Expropriation Act 55 of 1965 is determined.
Mount Hargo Investments (Pty) Ltd v Peersons Extension 1976 (3)
SA 343 (D) affords an interesting illustration of the effect of expropriation of property that has been leased. It was held that, although
expropriation may be regarded as a casusfortuitus in these circumstances, it does not automatically extinguish the tenant's liability
for the payment of rent. Since a landlord who has no title to the
leased premises can still validly lease them and since he merely
warrants vacuo possessio, liability to pay rent is extinguished only
when the tenant is actually expelled from the premises. Despite
expropriation of the property the tenant was thus held to remain
liable for the rent for the duration of the lease. Only on expulsion
would he be entitled to a remission proportionate to and in respect
of the period during which he had been deprived of occupation.
Loubser v SAR & H 1976 (4) SA 589 (T) concerned a claim for
compensation for land expropriated under the Railway Expropriation Act 37 of 1955. Besides the agricultural value of the land it was
claimed that compensation should also be paid for the potential of
a clay deposit found on a pan on the farm. Provisional tests carried
out on the clay deposit prior to expropriation indicated that the
clay could possibly be used for bricks. Full tests carried out after
expropriation showed that the clay was of a high quality. It was
further found that exceptionally heavy rains after the expropriation
had caused an accumulation of water in the pan and that a servitude
had been registered against the title deeds of the land reserving to a
third person certain rights to, inter alia, minerals and mineral
substances in the land. With regard to the above-mentioned
servitude it was held that the servitude did not in principle prevent
a claim for compensation in respect of the clay deposit. With regard
to the claim in respect of the clay deposit itself it was held that the
practical question was whether it was probable that a willing
purchaser and seller in an open market would have agreed on a
higher price than the agricultural value of the land by reason of
this potentiality. It was also held that unexpected later events such
as the exceptional rainfall could not be ascribed to the knowledge

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215

of an imaginary seller or purchaser at the time of the expropriation.

The court also had to decide whether an imaginary seller and
purchaser would in the normal course of events have carried out
the full tests before agreeing on a purchase price of the land. In
conclusion it was held that neither an imaginary seller nor an
imaginary purchaser would have carried out such tests before
conclusion of the sale and that the results of the tests could therefore
not be taken into account. Compensation was thus determined at
the agricultural value of the land.
In Lochner v Afdelingsraad, Stellenbosch 1976 (4) SA 737 (C) land
was expropriated for road-making purposes in terms of the Divisional Councils Ordinance 15 of 1952 (C), to which ss 136-144 of
the Municipal Ordinance 19 of 1951 (C) were mutatis mutandis
applicable in terms of s 242 of Ordinance 15 of 1952. The result
of this was an arbitration. Since the arbitrator had no authority to
solve questions of law, two issues were referred to the court in terms
of s 20 of the Arbitration Act 42 of 1965. The first concerned the
basis on which compensation should be paid for the expropriated
land. In this case the land had a potential for township development.
It had not, however, on the date of expropriation been subdivided
into erven. It was held that the owner was only entitled to compensation in the amount which a developer would have paid for
the land as a whole (taking into account its potential for subdivision), and not in an amount calculated on the assumption that
he himself could have subdivided the land and sold the separate
portions. The second issue was whether the owner was entitled to
compensation for the reduction in value of the remainder of his
property. It was decided that the term 'other financial loss' in the
relevant section of the ordinance concerned could not be limited to
loss that had actually occurred, but included also loss that would
in all probability occur in future. The owner was therefore also
found to be entitled to compensation for loss suffered because of the
reduction in value of the remainder. Theron J made the interesting
remark that there was nothing in the relevant sections of the
ordinances which would justify the conclusion that the legislature
intended to calculate compensation differently in the case of
expropriation of land for road-making purposes and expropriation
for other purposes.
PLANNING

In Enslin v Vereeniging Town Council 1976 (3) SA 443 (T) it was

held that before an owner could take advantage of the consent
given by a local authority to use his property for a creche in terms
of a town planning scheme, he had to apply successfully to the

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Administrator for the removal of any restriction in his title deeds

(in this case zoning as a residential area). This did not, however,
mean that the consent of the local authority was subject to a suspensive condition deferring the date of its consent until the legal
impediment had been removed. The consent was held to lapse if
the owner failed to apply for renewal of consent within twelve
months. A contrary conclusion would mean that the owner would
for ever be protected against the lapsing of the consent, even if the
removal of the restriction by the Administrator should take several
years. According to FranklinJ the whole character of the neighbourhood could in the meanwhile have changed to such an extent that
the establishment of the particular development consented to might
be wholly undesirable and in conflict with the harmonious development of the area.
It was held in Cape Divisional Council v Western Cape Timbers (Pty)
Ltd 1976 (3) SA 714 (C) that building regulations (promulgated by
the divisional council in terms of Ordinance 5 of 1952 (C) requiring
the owner to alter, remove or demolish work done on his premises
without plans approved by the council could not be construed
as being applicable to any person other than the owner of the
premises.
The appellant in Mohr v Divisional Council of the Cape 1976 (1)
PH D4 (AD) had erected certain pigsties on his premises without
submitting any plans. His subsequent plans were rejected on account
of their non-conformity with the proposed development of the area.
The court held that in the light of all applicable legislation the local
authority had been entitled to compel the appellant to remove the
sties without delay.
ROAD

In Basson v Administrateur- in- Uitvoerende Komitee, Suidwes-Afrika

1976 (1) SA 159 (SWA) an applicant succeeded in setting aside the
decision of the Administrator according to which a private road on
his farm had been declared a farm road. His application succeeded
on the ground that the audi alteram partem principle as envisaged by
s 11(5) of Ordinance 17 of 1972 (SWA) had not been complied
with. At a time when the applicant's attorneys had instructions with
regard to the matter they received a message by telephone that a
meeting of the road board would be held in the near future. The
attorneys, however, failed to communicate this message to the
applicant. The meeting was held in the absence of the applicant
and a recommendation was made by the board. Valuable rights of
the applicant had been affected by this recommendation without
the latter having had any reasonable opportunity of objecting to or

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217

of testing evidence given by a person whose farm bordered on the

applicant's land.
WATER

In the only case on water law in 1976, S v Barnard 1976 (1) PH

H 11 (NC), it was decided that the lock of a flood-gate at a distribution box was an 'appliance' and a 'water work' in terms of s 170(1) (a)
of the Water Act 54 of 1956. Tampering with such a lock was held
to be an offence under this section.
SERVITUDE

Two interesting cases on servitudes were decided in 1976. The

one dealt with the purported registration of a servitude of prospectus
(outlook), and the other inter alia with the revival of a servitude
which had been extinguished by the merger of the dominant and
servient tenements.
The facts of Kruger v Downer 1976 (3) SA 172 (W) were as follows:
The defendant was the owner of a tenement situated on the slope
of a koppie commanding an attractive view of the landscape below
and to the east. A house had been constructed on the upper portion
of the tenement some years previously. Later the property was
divided with the approval of the Surveyor-General into an upper
and a lower portion. The defendant in the meantime entered into a
contract of sale with the plaintiff by which he sold the upper portion
to the plaintiff. Since the formalities of subdivision had not been
completed there was a delay before transfer could be taken. When
transfer of the upper portion was eventually registered, the title
deed contained the condition in favour of the upper portion that
the owner of the lower portion should not be permitted to erect any
buildings or any other structures at a distance less than 3,15 metres
from its western boundary and at a distance less than 3,78 metres
from its southern boundary, the intention being that the view from
the upper portion should remain unobstructed. Subsequently the
defendant erected a large house on the lower portion which,
according to observations made at an inspection in loco, obstructed
the landscape view from the upper portion to the east to a material
extent.
In seeking an order that the defendant remove part of the house
which obstructed his view, the plaintiff asserted two alternative
causes of action. The first cause of action was based on an interpretation of the condition in the title deed which, according to the plaintiff, entitled him to an unobstructed view across the lower portion.
Alternatively, he claimed that the parties had intended to register
a servitude of prospectus, that the register should be rectified accord-

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ingly, and that the defendant should in terms thereof be required

to remove the obstruction. Since there was no evidence of common
or unilateral mistake at the time of execution of the contract of sale,
the alternative claim for rectification was not pursued.
With regard to the action on the interpretation of the servitude,
Margo J first tried to render the servitude meaningful in relation to
the land to which it purported to apply. From a topographical
survey it was, however, clear that the mere building prohibition
achieved no advantage for the upper portion as far as a better view
was concerned. The court pointed out that, without some practical
limitation on the height of any building erected on the lower
portion, the view from the upper portion to the east would always
be severely impaired. Secondly, Margo J attempted to construe the
servitude in the light of surrounding circumstances at the time when
it had been created. He pointed out that, by reason of the incompetence of the clerk in the employment of the defendant's attorney,
the wording of the servitude did not reflect the terms of the agreement properly. Two or more possible meanings could be given to
the underlying agreement, none of which was properly reflected
in the terms of the condition.
Margo J was therefore restricted to the language of the servitude
itself. He argued that, although the intention to preserve the view
was clear, this was purported to be achieved by the worthless
prohibition against building inside the prescribed boundaries. He
pointed out correctly that if the words 'the view from ... Portion 1
... shall remain unobstructed' had stood by themselves the servitude
could have been interpreted as that of prospectus et ne prospectui
offciatur (Van Leeuwen Roman-Dutch Law 2.20.14, Grotius 2.34.20,
Voet 8.2.12 and 8.4.15). These words did not, however, stand on
their own, and, far from constituting a substantive prohibition in
the language of the servitude, were merely a clause qualifying the
real substantive prohibition. He argued further that the language of
the servitude clearly did not prevent the erection of buildings beyond
the prescribed boundaries and that, since the lower plot was a
residential plot, the erection of a residence and its accessories must
definitely have been contemplated. The court was thus reduced to
accepting the consequences of the language of the servitude as it
stood. The fact that the servitude was completely ineffective could
notjustify importing a meaning which the language did not support.
The fact that an ineffective servitude had been registered did not
mean that an effective one should be substituted for it.
Margo J pointed out that the plaintiff's present difficulties were
largely due to his own foolish inaction in leaving the wording of the
servitude to the defendant and the clerk, neither of whom owed

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him a fiduciary duty. It was held that, since the plaintiff had failed
to establish that the defendant was in breach of the servitude as it
was registered, the merits of the defendant's plea did not require
further consideration and absolution from the instance was accordingly granted.
It is interesting to note that this servitude was constituted by a
so-called deductio servitutis, i e a reservation in the deed of transfer in
accordance with s 76(1) of the Deeds Registries Act 47 of 1937. This
is probably the most common manner in which servitudes have
always been constituted in South Africa. To the writer's knowledge
this is also the first time that an attempt has been made to register
a servitude of prospectus. There is no reason why future attempts to
create such a servitude should be unsuccessful. As South African
law does not recognize a numerus clausus of praedial servitudes (or
personal servitudes), a servitude need not necessarily be linked to a
well-recognized name but can be created in any terms and of whatever content the parties wish. Since a servitude would, however,
always be narrowly construed in the light of the presumption against
limitation of ownership a person wishing to create an extensive
servitude in favour of himself would be well advised to circumscribe
the contents thereof carefully or to latch it on to a known servitude
the content of which has sufficiently crystallized. The construction
of the terms of the servitude should not be left in the hands of a
person who has no knowledge of the different possibilities and their
legal effect. It may also be noted that the translation of Voet
accepted by Margo J may create the impression that a servitude of
prospectus can only be created in favour of higher-lying ground.
There exists, however, no reason why a servitude of outlook on
Table Mountain cannot be constituted in favour of a lower-lying
tenement as against a higher-lying tenement.
In Eichelgruen v Two Nine Eight South Ridge Road (Pty) Ltd 1976
(2) SA 678 (D) the extinction of a servitude by merger and its
subsequent revival were discussed. The facts of the case were as
follows: Mrs Fannin became registered owner of the remainder of
lot 12 in 1931 and owner of subdivision G by deed of transfer in
1938. Both deeds made direct reference to a servitude of road over
subdivision G in favour of the remainder and recorded that the
servitude was as shown on the diagram of subdivision G, the servitude having been created in the deed of transfer of 1931. In 1956
Mrs Fannin sold and transferred subdivision G to one Jackson.
The power of attorney authorizing the transfer set out that subdivision G was held by Mrs Fannin under the deed of transfer of
1938 and that the servitude of road was incorporated in the same
manner as it had appeared in the deed of transfer of 1938. Since no

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copy of the deed of sale between Mrs Fannin and Jackson could be
traced it was uncertain whether the servitude was actually mentioned
therein. Jackson, however, testified that Mrs Fannin's husband had
drawn his attention to the servitude of road and that he had bought
the land on the assumption that it would be transferred subject to
the servitude. Jackson then sold to one L, and once again the servitude was recorded in the deed of transfer. Thereafter L sold the
property to Eichelgruen, the plaintiff, in 1968. The deed of transfer
also made reference to the servitude. In 1974 Mrs Fannin sold the
remainder to the defendant, it being a term of the deed of transfer
that the property enjoyed the benefit of the servitude of road.
In denying that a servitude existed over his property the plaintiff
contended that the merging of the two properties in the ownership
of one person had served to extinguish the road servitude and that,
since Jackson and Mrs Fannin had only referred to the servitude,
proper steps to create and register a new servitude had not been
taken.
The court side-stepped discussion on possible extinction of the
servitude and held that the registration of a servitude in a deed of
transfer is prima facie proof of the existence of the servitude described
in the deed and that the deed as such remains the record of the
transaction until rectified. The court also expressed the opinion that
a deed of transfer can only be rectified on very limited grounds.
There was little likelihood, in view of the oral evidence given by
Jackson, that as between Mrs Fannin and Jackson Mrs Fannin
could successfully have applied for rectification. The position of the
defendant was even worse since both he and his predecessor in title
had bought the property on the assumption that a servitude of
road existed thereon. Inasmuch as the plaintiff could not in these
circumstances have applied for rectification of the defendant's deed
of transfer or of her own, this was considered sufficient reason why
the plaintiff could not succeed.
Though it was not strictly necessary to consider the contention as
to the non-revival of the servitude, the court relied strongly on
Du Toit v Visser 1950 (2) SA 93 (C) at 102 in holding that the servitude had in fact been revived. Having regard to the negotiations
surrounding the sale of the servient tenement to Jackson, the court
found that it was clearly established that Jackson had been aware
that Mrs Fannin required him to recognize the existence of the
servitude which then appeared in the title deeds of subdivision G and
on the subdivisional diagram, and that he had agreed to do so.
According to the court this was strong evidence that both parties
had intended the servitude to be reflected in the deed of transfer.
When the servitude had in fact been incorporated in the deed of

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transfer, this had had the legal effect of reviving it. Judgment was
therefore given for the defendant with costs.
It is respectfully submitted that this decision does not pay sufficient attention to a cardinal principle of the law of property, namely
the principle nulli res sua servit. According to this principle a servitude
is extinguished when ownership of the dominant and servient
properties merges. The servitude which thus remained registered
against the title deeds of subdivision G from 1938 till 1956 was
evidence of a legal nullity, and application for its cancellation could
have been instituted at any time. It is submitted that reference to a
mistake in the title deeds (ie the registered servitude) cannot be
accepted as prima facie proof that such a servitude still exists. South
African law is still considered to have a negative and not a positive
system of registration. Notwithstanding the decision in Du Toit v
Visser 1950 (2) SA 93 (C), it is further submitted that a mere
reference should not be interpreted too readily as a revival of a
servitude that has been extinguished by merger. Such a trend is in
conflict with D 8.2.30 pr and Van der Keessel Dictata ad Grotium
2.36.6, in which the words nominatim and expresse are used to describe
the way in which a servitude that has become extinguished by
merger can be revived. A relaxation of the application of the principle nulli res sua servit is, it is submitted, in conflict with the presumption against servitudes and the presumed unfettered boundaries
of ownership.
MINERAL RIGHTS

In Erasmus v Afrikander ProprietaryMines Ltd 1976 (1) SA 304 (W)

it was held that the co-holder of an undivided share in mineral
rights should not be restrained from exercising his rights on the
mere ground that his other co-holders have not consented or given
their authority thereto. The court should intervene only where it
appears from the facts and circumstances of the particular case that
the rights of other co-owners are being, or are likely to be, adversely
affected. In this case the principle was accepted that the ownership
of minerals not yet mined remains in the owner of the land and
that the mere title to mineral rights in respect of land does not
per se transfer the ownership of unmined minerals to the holder or
joint-holders of the mineral rights.
In .A/el v Enyati Colliery Ltd 1976 (3) SA 30 (AD) a mining company was the registered holder of coal 'rights' over a portion of a
farm. The mineral rights were orginally granted on the condition,
inter alia, that water in a stream was to be measured and that the
company was to deliver an equivalent quantity of clear water to
the farmer. The quantity of water was, however, never measured.

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In the meantime the farm as well as the mineral rights changed

hands several times. When the stream dried up the successor-in-title
claimed damages from the present holders of the mineral rights.
The action failed on the ground that the actual measurement of
the water had been a prerequisite to the coming into existence of
the obligation to deliver water. It is interesting to note that Jansen
JA saw no difficulty in enforcing the condition against subsequent
holders of the mineral rights as well. He referred to Van der Merwe
v Wiese 1948 (4) SA 8 (C) at 33 in this regard. One should, however,
bear in mind that that case concerned a traditional praedial servitude and not mineral rights, and further that the obligation in that
case was imposed on the praedium serviens and not on the person
(owner of the praedium dominans) who derived a benefit from the
servitude. The word 'assigns' in the original and subsequent deeds
of transfer could, however, have had the effect of transferring contractual obligations to subsequent owners.
MORTGAGE

Four cases were reported in 1976 dealing, albeit only marginally,

with mortgage.
In Tettamanzi v Agricultural Finance Corporation 1976 (2) SA 439

(R), following the Cape practice, it was accepted that on sales in

execution the same limitation on the rights to preference for interest
in arrear exists as in the case of insolvency. It was therefore held
that the applicant's claim to capital due under a third bond ranked
in preference to any claim by the respondent for arrear interest due
under its first and second bonds prior to the commencement of the
year preceding the year of registration.
The plaintiff in Western Bank Ltd v Pretorius 1976 (2) SA 481 (T)

claimed provisional sentence on a covering mortgage bond. It was

held that as the acknowledgement of indebtedness in the bond was
conditional upon future advances of money, the covering bond
was not a liquid document. It was, however, held that the bond was
rendered liquid by reason of a certificate in terms of the bond and
signed by the authorized officer, specifying the amount which was
owed and stating that such amount was due. Provisional sentence
was, however, nevertheless refused because the plaintiff had failed
to discharge the onus resting upon it of proving that the amount
claimed was due and payable.
The case of Allied Building Society v Wolmarans 1976 (2) SA 782

(0) also concerned a claim for provisional sentence on first, second,

third and fourth building society bonds over the defendant's property. It was held that the building society was not entitled to sue
on a summons claiming the total amount due without specifying

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the amount due under each bond.

In Pillay v Harichand1976 (2) SA 681 (D) the cessionary of a mortgage bond instituted action for provisional sentence on the bond,
asking for foreclosure of the bond and for recovery of the principal
sum still due. The defendant alleged that payment of monthly
instalments in terms of the bond had been timeously made to the
cedent, and that the cessionary was in error in alleging that he (the
defendant) was in default of performance of his obligation. The
cessionary pleaded that he had given notice to the mortgagor for
arrangements to be made for instalments to be paid at a new address.
The court held that any separate notice by a third party appointing
a new place of payment in order to be effective must be preceded
by information that the third party is the mortgagee's cessionary
and therefore entitled to give such notice in terms of the bond.
LIEN

In Muller & another NNO v Bryant & Flanagan (Py) Ltd 1976 (3)
SA 210 (D) a building company claimed a debtor-and-creditor
lien in respect of work done on a certain building. The company
on whose behalf the building had been erected went into liquidation.
Some months prior to the liquidation the builder had left the building
site for three months while awaiting instructions from the architect.
He had left certain building materials and tools in a locked storeroom on the site. Both the builder and the company in liquidation
had retained keys to the storeroom. Shortly before the liquidation,
the builder had returned to the building site, resumed work on the
building and barricaded certain portions of the building.
The court held, first, that the builder had not exercised sufficient
physical control over the building site to ground a debtor-andcreditor lien. By keeping certain property locked up in the storeroom a certain measure of control had indeed been exercised, but
the fact that the company in liquidation had also had a key to the
storeroom rendered this control merely symbolic.
It was held secondly that, even if the builder had exercised
sufficient control over the portion of the building, this did not constitute an effective ius retentionis with regard to a claim for a global
sum for the building as a whole. The balance of the contract price
outstanding could not be specifically allocated to the portions over
which the respondent claimed a lien.
In holding thirdly that the original lien had been destroyed when
the builder left the site for three months the court relied on the
following remarks in Scholtz v Faifer 1910 TPD 243 at 248:
'But where work is suspended for a considerable time, then it
seems to me that if the builder desires to preserve his possession

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he must take some special step, such as placing a representative

in charge of the work, or putting a hoarding round it, or doing
something to enforce his right to its physical control. If he
chooses to leave the work derelict, then, no matter what his
intention may be, the physical element is absent, and he loses
possession, even though he may say he intended to resume it or
never intended to abandon it: the animus may be there, but the
detentio is absent.'

It was therefore held in conclusion that the builder had lost the lien
when he left the site and that the lien had not revived on his return
to the property in the absence of a further tacit or express agreement.
In Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola

1976 (4) SA 464 (AD) (discussed above 207), interesting remarks are
made on the question whether the holding of a bill of lading can
operate as a quasi-lien in South African law (at 498).
LEASE

In Bristow v Coleman 1976 (2) SA 252 (R) the petitioner and the
respondent had, prior to the promulgation of the Parks and Wild
Life Act 14 of 1975 (R), entered into a lease in terms of which the
sole hunting rights on a ranch were leased to the respondent for
five years. When the respondent purported to cull and hunt game in
the capacity of an 'appropriate authority' in terms of the abovementioned statute the petitioner applied for an interdict restraining
the respondent from so doing. It was held that, since the hunting
rights had been leased at a time when the Act had not yet been
promulgated, the petitioner being ignorant of the scope and intention of its provisions, the lease agreement could not be construed to
amount to the appointment of an 'appropriate authority'. It was
further held that the lease did not constitute a permit in terms of
the Act. An interdict was therefore granted since alternative remedies were found unsuitable. It was held to be inappropriate for the
petitioner to sue for damages on each occasion when the respondent
and his clients killed game. A prosecution would have to wait until
the petitioner's rights had been infringed.
In First Consolidated Leasing Corporation Ltd v Theron 1976 (4) SA

175 (T) a tenant's rights in two agreements for the lease of

afforested land were restricted to 'cutting, felling, working and
removing ...

trees' on the land. The trees on the land were of the

type that regenerate themselves after felling. It was held that the
agreements did not confer a ius abutendi on the tenant and accordingly constituted leases and not sales. The duty of the landlord to
renew the plantations at his own cost was held not to be in itself

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225

inconsistent with a lease. Interesting examples of so-called silva

caedua are referred to in this case (at 182).
MISCELLANEOUS

In Constantia Landgoed (Edms) Bpk v Bethalrand (Edms) Bpk 1976

(4) SA I (T) it was held that the purchaser of erven in a township
had no locus standi to enforce an obligation conferred by proclamation on the developer of the township to make, scrape and maintain
the streets of the township. The right to enforce such an obligation
was held to rest exclusively with the local authority.
In Wolgroeiers Afslaers (Edms) Bpk v Die Administrateur 1976 (1)
PH D3 (C) it was held that an endowment, once ordered by the
Administrator, cannot be withdrawn. The appellant bought a plot
of land from the municipality of Cape Town and had to pay a
considerable endowment by order of the Administrator to the
municipality on the subdivision of the land. It was argued that the
Administrator in ordering the endowment might not have exercised
his discretion properly. It was held that if the court finds that the
Administrator, in exercising his power to order an endowment as a
condition of the subdivision of land, could have taken certain
important circumstances into consideration (in this case expenses in
regard to the subdivision after considerable expenses had already
been incurred), and that, if he had done so, this could have obliged
him to impose such a condition, it cannot be said that he did not
exercise his discretion properly.
C LITERATURE
Onteieningsreg.By A Gildenhuys. Durban: Butterworth Co (SA) (Pty)
Ltd. 1976.
Law and Practice of Conveyancing in South Africa. 2 ed. By R J M Jones.
Cape Town: Juta & Co Ltd. 1976.
South African Environmental Legislation. By Andr6 Rabie. Pretoria:
Institute of Foreign and Comparative Law of the University of
South Africa. 1976.
The Customary Law of Immovable Property and of Succession. 2 ed. By
A J Kerr. Grahamstown: Rhodes University Library. 1976.
The Law of South Africa (ed W A Joubert) I 365-451 Animals by
C G van der Merwe & M A Rabie. Durban: Butterworths. 1976.
'Res Litigiosa.' By P van Warmelo. Gedenkbundel H L Swanepoel
(1976) 14.
'Environmental Pollution-The New International Crime.' By
Barend van Niekerk. (1976) 93 SALJ 68.
'For Whom the Bell Tolls.' By A F Butt. (1976) 93 SALJ 128.

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'Much Ado About Stone.' By M Kaplan. (1976) 93 SAL] 139.

'Stones.' By L B Liesegang. (1976) 93 SAL7 479.
'Stones.' By Morris Kaplan. (1976) 93 SAL] 479.
'Disclosure and Evaluation of Potential Environmental Impact of
Proposed Governmental Administrative Action.' By Andr6 Rabie.
(1976) 39 THRHR 40.
'Eiendomsoorgang en Verdiskontering.' By D S P Cronj& (1976)
39 THRHR 245.
'Erasmus v Afrikander Proprietary Mines Ltd 1976 1 SA 950 (W).' By
P van Warmelo. (1976) 39 THRHR 298.
'Nulli Res Sua Servit en Tuinserwitute.' By Susan Scott. (1976) 39
THRHR 379.
'Sources of Public Streams in Modern South African Law.' By K D
Nunes. 1975 Acta Juridica 298.
'The Need for Democratic Consent for Private Property.' By
K Reese. (1976) 9 CILSA 81.
'Locus Standi: The Administration's Shield and the Environmentalist's Shackle.' By Andr6 Rabie & Cor Eckard. (1976) 9
C1LSA 141.
'Wat is 'n Mineraal?' By H P Viljoen. (1976) 9 De jure 212.
'Die Onteieningswet 63 van 1975-'n Kort Oorsig.' By A Gildenhuys. 1976 De Rebus Procuratoriis159.
'Artikel 63 van die Akteswet Weereens.' By D H J Visser. 1976
De Rebus Procuratoriis259.
'Grondregistrasie en Regspersone.' By J W S Heyl. 1976 De Rebus
Procuratoriis365, 433, 494.